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Orissa High Court

Dillip Kumar Baral vs State Of Odisha And Others .... Opposite ... on 9 May, 2022

Author: R. K. Pattanaik

Bench: R. K. Pattanaik

                     IN THE HIGH COURT OF ORISSA AT CUTTACK

                                   W.P.(C) No. 6257 of 2022

            Dillip Kumar Baral                           ....          Petitioner
                                            Mr. A. K. Mohapatra, Advocate
                 Mr. J.B. Mohanty, Advocate (in W.P.(C) No.10153 of 2022)
                                       -versus-
            State of Odisha and others               .... Opposite Parties
                              Mr. A.K. Parija, Advocate General along with
                                            Mr. Debakanta Mohanty, AGA
                                                      Mr. P.K. Parhi, ASGI
                                                     Mr. P.P. Behera, CGC

                        CORAM:
                        THE CHIEF JUSTICE
                        JUSTICE R. K. PATTANAIK

                                         ORDER

Order No. 09.05.2022

05. 1. An affidavit dated 8th May, 2022 has been filed by the Archaeological Survey of India (ASI) in which inter alia it is stated that a joint inspection was carried out on 1st May, 2022 and an onsite discussion was held with the Odisha Bridge & Construction Corporation (OBCC) and Shree Jagannath Temple Administration. It is stated that "no valid permission has been given for the Shree Mandira Parikrama Project". A report of the inspection has been enclosed as Annexure K/4 to the affidavit.

2. It may be noted here that the conclusion in the joint inspection report dated 2nd May 2022 states that "there is every possibility that the agency (OBCC) during the excavation/soil removal might have destroyed the archaeological remains of the heritage site" (emphasis supplied) is vague and fails to be specific as to whether any actual Page 1 of 3 damage has in fact been caused to any archaeological remains at the heritage site.

3. The affidavit then proceeds to say that while the work of toilets, drains, electrical works "do not fall within the definition of 'construction' and therefore can be carried out even in the prohibited area", some other works "such as reception center fall squarely within the definition of construction and being in the prohibited area, is not permitted".

4. The third aspect which is pointed out is that even for works in the regulated area which fall within the definition of 'construction', appropriate permissions as prescribed under the Ancient Monuments and Archaeological Sites and Remains Act (AMASR Act) would be required and that for such works "no prior permission has been obtained from the National Monuments Authority (NMA)".

5. On all the three aspects pointed out in ASI's affidavit, Mr. A.K. Parija, learned Advocate General, appearing for the State of Odisha joins issue, by submitting that a 'no objection' was in fact granted by the NMA on 4th September 2021, the copy of which document is annexed to the same affidavit of the ASI at internal page No.31. He further states that on the inspection note of 1st May 2022, he would like to file a specific reply since it proceeds on the erroneous basis that no permission was obtained from the NMA or the ASI. He refers to the notes of inspection of the Director General of the ASI, followed by a letter dated 8th March 2022, written by the ASI, Bhubaneswar Circle in that regard.

6. Mr. Parija further clarifies that the reception center is now being moved out of the prohibited area and is being constructed in the "regulated area". He refers to paras 18 & 19 of the ASI's affidavit which inter alia appear to state that both the ASI and the State Government should work together to ensure that no archaeological remains are missed out or damaged. He states that the State Government fully accepts the said position. Mr. Parija also made extensive reference to several paragraphs of the judgment of the Supreme Court in Mrinalini Padhi v. Union of India (2019) 18 SCC 1 which according to him form the basis of the present works being undertaken at the parikrama site.

7. The submission of learned Advocate General that the State Government will work in cooperation with the ASI on all works undertaken at the Parikrama site is placed on record. The State Government will keep in view the observations of the ASI when it undertakes any further works at the Parikrama site.

8. The affidavit of the State Government in response to the affidavit of the ASI be filed on or before 20th June, 2022.

9. List on 22nd June, 2022 along with W.P.(C) No.10153 of 2022.

(Dr. S. Muralidhar) Chief Justice (R. K. Pattanaik) Judge S. Behera Page 3 of 3